Google highlights fair use defense to YouTube takedowns

Google has improvedhighlighted its ContentID copyright enforcement system for YouTube, a "fair use" button for people who've had their videos taken offline (like all those people who created Hitler/Downfall parodies). The way the new system works: after your video is taken down by a copyright complaint, you have the option to contest the complaint, either because you dispute the copyright claim itself, or because you believe you have a fair use defense. Click the button, and your video goes straight back up (and the people who sent the original takedown have to go to court to get it taken offline again).

My Hitler video (of Hitler finding out Cory hates the iPad) was taken down shortly after I put it up when they started taking down all of them. But I went in and protested (after reading this blog) and it’s back up!

I suspect the Hitler/Downfall filmmakers are doing the takedowns because they will assert that the ‘parodies’ aren’t really legal parodies because they are using the original video images. Weird Al Yankovich does legal parodies of music videos because he creates new audio and video imagery. If people re-did the Hitler/Downfall scene with new actors, then it would be a legal parody. IMO, but I am not a lawyer. Don’t sue me!

Call me cynical, but a quick read seems to indicate that there has been an additional step added to the takedown process that allows posters to claim Fair Use, but getting the material taken down would still just require a sworn affidavit, not a court order.

That’s my reading of it too. This click and counter-click looks like it takes place -before- the DMCA process has been engaged, and still allows for an exchange of DMCA notice and counter-notice before the thing winds up in court.

The real benefit here is that it forces a human being to look at the video and decide if it’s worth a takedown notice. I’d like to believe that the dancing baby and countless other ridiculous auto-takedowns wouldn’t have happened if a real person had to watch and see. Now we’ll have the chance to see if my faith in common sense is misplaced.

That is, in fact, how the law works. The DMCA requires only that the copyright holder assert that they own the copyright and did not authorize its use. The service provider must then immediately take down the content and give the person who posted it an opportunity to respond.

One thing that’s not made clear in this post is that if you claim fair use, and the copyright holder takes you to court and you lose, you are now doubly boned because you will likely pay damages and legal fees.

I used to work for a Large Website dealing with the DMCA complaints we received, and what we always advised our users was “do not contest this unless you are fully prepared to go to court”

That’s terrible advice. DMCA notices are often complete crap, like threats of SLAPP lawsuits. If you have a basic understanding of what constitutes fair use, and you’re not an idiot, you’re pretty safe.
For that, look here: http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law
I know, Wiki isn’t a source, but as a law student I can tell you that this is pretty reliable.
But also, as a law student, IANAL.

I see what you’re saying, but I disagree that it’s terrible advice. The reality is that if you contest a DMCA takedown, you are saying “I believe I am allowed to use this material”. If the copyright holder disagrees, the only thing left to do is sue you. So, effectively, by counter-notifying you are telling them that you’re willing to defend your point of view in court.

IANAL either, but our Large Website Lawyer was the one who told us to say these things.

No, in the real world that’s excellent advice. It’s also what I was told by the EFF: they warned me that if I filed a counter DMCA notice I could end up in court.

Sure, you’re absolutely right that ‘DMCA notices are often complete crap.’ But it doesn’t matter. That’s some serious shit right there even if you win. And being clearly in the right guarantees absolutely nothing. You’re a lawyer in training, so you of all people should recognize that.

It’s a frickin travesty, but that’s where we are right now. Anon’s ‘Large Website Lawyer’ is right: “do not contest [a DMCA takedown] unless you are fully prepared to go to court”.

The point I was making is that nowhere in the linked article, or in the internally linked DMCA takedown procedure does it say (or even imply) that the rightsholder will be required to take you to court after you claim fair use. They will only be required to provide a sworn affidavit that their rights are being violated. this is exactly what they’re doing already. I don’t see how adding a step is going to change much. It does say that Youtube expects them to play nice and not lie, but doesn’t seem to provide any incentive for them to do so. Same old poo in a new flaming bag, as near as I can tell.

If you have ever tried to have contact with google legal/you tube you will notice serious DMCA breaches that they do ZERO about. Okay, so you make a claim b/c some moron is using your bandname & doing so in same genre and style for example. You contact you tube and they see through documantation that you are the rightful owner of that name. Then they begin taking down the offending videos tagged with YOUR BANDS name. All looks good until you realize that they have only taken down about two of the offending videos. You contact them and a DIFFERENT employee will not process the rest of your claims, stating they don’t take issue with the videos. They say “get a lawyer”… i say but you ALREADY agreed that the videos used the band name contrary to international laws. They ignore you. GREAT JOB YOU TUBE!
Fair use will be just as arbitrary as the staff members objective opinion & who is paying them – that’s not proper OVERSIGHT. Thank you for hearing my rant.

They still have done nothing about the thief -way to support musician YOU TUBE!

Google really does bust out with the awesome a lot these days. This sounds like a “sue me” button in some ways though. I know that’s how the law works, and that the law is completely fucked, but asserting your fair use rights instead of kowtowing means they either back down or take you to an actual court. I’d find that pretty entertaining personally, but it would also be incredibly expensive and time consuming.

If idiots went around suing Google more often, there would be less idiots who could afford to go around suing everyone. Of course, the lawyers would still be the main beneficiaries, but ’twas ever thus…

I’m in the crosshairs on YouTube right now. A company called Entertainment Rights, which owns the Veggietales series, sent a DMCA takedown notice over a parody of the Catholic church’s child molestation scandal I produced called “Veggietrials: Our Little Secret.” This is a real DMCA takedown, not a Content ID block, as I didn’t sample any content. The piece is an original parody, and I still have the 3D, audio, and edit files to prove it’s my own work.

It isn’t my best work. It’ll never get me business. There are people it will upset, though I think it was something that needed to be said. A sane person would have let this go. Today is the 10th business day since I did what the law tells me I’m supposed to do in these cases and filed a counternotice. We’ll see if it gets Biblical.

This is why the DMCA system needs to be fixed. The belligerent party risks nothing by asserting a false claim. I risk everything by contesting it. Even a $50 automatic damage for an uncontested claim would be SOMETHING to economically disincentivize a company from lying.

Your Veggietales “parody” really doesn’t sound like a legal parody at all, as it doesn’t sound like your work really comments on the Veggietales series at all. The originality of the production is irrelevant.

For the first time in a very long time I applaud Google or whomever in that org had the foresight to add this feature. For too long the corporates that own copyright have not had to concern themselves with the legitimacy of their DMCA notices. Now they have to act with the same amount of care as their customers. Wewt!

richardault, I don’t mean to pick on you, but like many people in this thread, including the OP, contrary to appearances there is very little here to celebrate.

Yes, sure, it’s good that Google/Youtube provides a mechanism to contest a content ID block. On the other hand think how outrageously bad it would be if they failed to provide this kind of dispute mechanism.

Also, please note that this dispute mechanism is for content ID blocks only. A DMCA takedown dispute is an entirely separate procedure that is not, and cannot be, done at the push of a button.

Furthermore, if you think that for this, or any other reason, corporations now have to ‘concern themselves with the legitimacy of their DMCA notices’, then I’m afraid you’re sadly mistaken. Yes, they are supposed to exercise a form of due diligence, and there are technically sanctions if they fail to do so, but in practice they can fire off frivolous DMCA takedowns cheaply and easily and with very little risk of any blowback.

Goddammit, the level of spin and factual disinformation in this ongoing story is just getting ridiculous. Cory, this is your ‘beat’. In all conscience, how can you continue to be so sloppy about this?

First, Google/Youtube have ‘changed’ or ‘highlighted’ absolutely nothing. All they’ve done is point out that it’s not their problem. If you get taken down by the content ID system it’s because of the default actions set by the content owner. Nothing about any of this has changed.

As for the options/actions available to a person whose video has been flagged (and either blocked, monetized or left alone), again, these are exactly the same as they were before. (I speak from personal experience. The ‘fair use button’ — it’s not actually a button at all, AND it requires you to ‘explain briefly’ — don’t forget to run that past your attorney first, kids — is three screens deep in the dispute process.)

Meanwhile, most, if not all, of the ‘Downfall parodies’ are NOT in fact parodies. This has enormous bearing on whether they’re fair use or not. (And of course, if it gets to a DMCA dispute and push comes to shove, you could still end up getting screwed big time by a court decision even if you were in fact perfectly in the right. Who do you think is going to be hiring the more expensive legal team, you or Constantin Film?)

Cory says:

the people who sent the original takedown have to go to court to get it taken offline again

As others have already pointed out: no, they don’t. The next step, if the rightsholders so choose, is simply to file a DMCA takedown notice, and your video gets taken down again. You can also dispute this takedown, but at this point you are exposing yourself to some serious liability. (IANAL, but again, I speak from personal experience. Last year, I disputed a DMCA takedown on a parody — an actual parody — that I made. The original rights holder then came back and told Youtube that they had filed suit, but this turned out to be untrue and they eventually backed down. In the end it took 3 months and some help from the EFF to get my video reinstated. To be fair, I should also mention that rightsholders are also technically liable if they file ‘frivolous’ DMCA takedowns, but this would be costly and difficult to pursue, and AFAIK it hasn’t yet been tested in the courts. In practice, my impression is that a corporation can still fire off DMCAs with very little risk of any blowback whatever.)

To be fair to Google/Youtube, they’re in a difficult position: they have to keep their corporate clients happy while also not pissing off their millions of users. Also, of course they have legal obligations, eg under the Safe Harbor provisions. Consequently, from time to time they fire off PR flack as per the OP. But that’s all it is, folks, just PR.

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

That seems to imply that the Hitler/Downfall videos are really satires, and not likely to be protected under fair use.

I’ve heard that before, many places, but I disagree. Parody isn’t the only defense of fair-use, and I think this can still be characterized as parody, since the humor is coming in part from the fact that this is from that specific movie.

The fair use defence goes beyond parody, but that doesn’t mean you can just shout “fair use” and be free; if not a parody, what other fair use defence would you assert?

The Hitler meme is just that: a meme, and not a parody. It doesn’t really comment on the film or even that scene in the film in any meaningful way. The extremely wide application of the meme and the variety different viewpoints expressed in the meme are rather suggestive that most of these videos are not commenting on the actual movie or scene itself. I’d also suggest that many more people have seen (and created) these videos than have actually seen the movie itself… and it’s understandably difficult to parodize (in the legal sense of offering commentary on that specific thing) something which you haven’t even seen.

If they think they have a case in court, and they win, I suspect you would get hit with court costs and attorney fees. Since these are big companies with smart lawyers, you better be really, really, really sure you’re not infringing before hitting that button. Because they won’t have taken it down in the first place if the lawyers weren’t ready for a fight. This looks like a wolf in sheep’s clothing to me

>> Because they won’t have taken it down in the first place if the lawyers weren’t ready for a fight.<<

I think that’s going to be tested now.

Up until this point, it seems (judging entirely by reading BB posts over the years) that they would do it to anything mildly irritating to them. Now we’ll see who they really sue. Because they really don’t want to lose.

Keep in mind, everyone: a lot of the videos uploaded to YouTube really ARE infringing content and hence illegal (people tend to forget that). I think this system is the best compromise: if it IS fair use, any company with decent lawyers won’t bother taking it to court because they know they’ll lose. If it isn’t fair use, the courts will order it taken down and it will be. This works for everyone.

For those failing to see the awesome:
The awesome is that this stops shotgun DMCA tactics. Sure, they have big scary lawyers and such…but they’re not going to use them unless they’re absolutely sure they’ll win. Because those lawyers are expensive. But a DMCA notice – that’s cheap. Hell they computer generate them. It essentially costs them _nothing_. So they don’t care if they’re right or not, they send it out anyway. If they’re wrong with a DMCA notice, nothing happens. If they’re wrong when they take you to court, they lose a lot of money.

The thing that frustrates me the most is the general sense of apathy I feel from people whenever I bring up the growing issue of copyright. It usually ranges from “Who cares?” to “So what? The companies are going to win anyway.” I just want to take these people and shove them into a world where

– the internet is strictly regulated into a one-way medium.
– you can’t get on Facebook because your Comcast subscription doesn’t include that site.
– schools get heavily fined for showing a movie in class.
– you can’t clip magazine or newspaper articles for your kid’s school project.
– it’s illegal to move a song from your computer to your MP3 player.
– you can’t sing “Happy Birthday” to your kid.

Hell, I want to make it illegal to talk about last night’s tv show around the watercooler at work. I want names to be under copyright so you have to pay to name your kid or your dog. (Apparently some guy in prison actually tried to copyrite his name so that the news organizations would have to pay to use his name.)

Then I take a deep breath, allow sanity to return, and remember that “scorched earth” helps no-one, and that this is how we do it: one step at a time.

Google’s new policy isn’t the greatest, but it’s a small step in the right direction. Maybe someone is listening after all.

Wierd Al does what he does for PROFIT. I’m no copyright lawyer but it seems like that’s different from where use is for the purposes of purely artistic creation.

That said, it probably complicates things that Google is monetizing people’s purely artistic expression. So maybe Google will have to lawyer up on behalf of all us YouTube’s users after all. And they’ve got LOTS of really good lawyers. Whee!

But it seems to me that the real effect of this might actually come from people educating themselves as to what “fair use” really means.

I mean, can we get someone who actually IS a lawyer in this area to tell us if the Downfall Remixes are fair use or not?

If you have an unregistered copyright on non-commercial material it isn’t worth the time , effort and cost of taking an infringment to court. Sure a DMCA notice is fairly cheap, but after they pull the image , it often gets put back up. Go to court and your damages are limited to actual loss, which for a non-commercial item is 0, no punative damages on unregistered copyrights. So dont take on Disney or another big studio, but any private individuals work is pretty much fair game.

While damages from using an unregistered work are likely to be minimal, if the copyright holder is going to be sending DMCA takedown notices, they’re also probably going to register their copyright at the same time; while you might be safe in posting a non-commercial work the first time, there’s a good chance that infringing again after the takedown notice & probable registration will expose you to statutory damages.